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Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of
Broadband Industry Practices
WC Docket No. 07-52

To: The Commission

Reply Comments of Public Knowledge, et al.

SUMMARY

NBC Universal ("NBC") has asked the Commission to require that broadband
providers "use readily available means to prevent the use of their
broadband networks to transfer pirated content."¹ While we agree that there are appropriate ways
to discourage copyright infringement on the Internet, NBC's call to
require that broadband providers use "bandwidth management tools" to
effect this end is misguided. Any attempt to use this technology to
control what may be done on the Internet will have serious unintended
consequences. Particularly, these technologies limit First Amendment
freedoms, stifle innovation, threaten personal privacy, and do little to
address the underlying problem. Additionally, NBC's proposal invites the
FCC to exceed its jurisdiction.

The Internet has been successful in large part because it is a
non-discriminatory network that allows many different kinds of
applications to operate over it. Attempts to filter the Internet to
remove certain kinds of applications threaten this openness and would
make it difficult for new kinds of innovative applications to be adopted.
Technological network filters are impermissibly overbroad in that they
limit lawful expression and fair use. They are also ineffective because
determined infringers and new technologies will always be able to evade
the filters. Furthermore, the FCC has no jurisdiction to mandate systems
that would interfere with copyright law and contravene Supreme Court
decisions.

NBC's call to filter the Internet is particularly misguided in that
superior means exist by which content providers can protect their
interests. Existing legal tools, consumer education, alternative
licensing regimes, and improved offerings by content providers are all
means by which creators can be paid without changing the nature of the
Internet.

Public Knowledge, Consumer Federation of America, EDUCAUSE, Electronic
Frontier Foundation, Electronic Privacy Information Center,
FreeCulture.org, Free Press, Knowledge Ecology International, Media
Access Project, New America Foundation, and U.S. Public Interest Research
Group hereby submit these Reply Comments solely to address
matters raised by NBC in its filing of June 15, 2007, in the
above-captioned proceeding.² NBC asks the Commission to require that broadband
providers "use readily available means to prevent the use of their
broadband networks to transfer pirated content."³ For the following reasons, Public Knowledge,
et al., urge the Commission to deny NBC's request.

INTRODUCTION

The Internet owes much of its success to the ease with which information
can be copied from one computer to another. "Copying" is ubiquitous with
all Internet applications. To download or upload a file is to make a
copy. When you send an email or access a web page, you are making a copy.
On the Internet, to communicate is to copy. Security expert Bruce
Schneier has said that "[m]aking digital files not copyable is like
making water not wet[.]"⁴
The Internet's success is also due to its flexibility -- it is simply a
medium through which many different kinds of applications communicate.
Network operators have traditionally not tried to govern what kinds of
applications use the Internet. The ease with which computers are able to
copy digital information, and the multiplicity of methods they use to do
so, has led to widespread file-sharing, including unauthorized sharing of
copyrighted material. This troubles some copyright holders, and poses a
threat to some companies' current business models. But companies need to
adapt to technological progress, not devote their energies to stopping
it. We agree that rights-holders and content creators need to be paid for
their work. This can be ensured, however, without drastically changing
the nature of the Internet.

NBC has asked the FCC to require that broadband providers "use readily
available means to prevent the use of their broadband networks to
transfer pirated content."⁵ NBC elaborates that

[w]hether those means consist of relatively low-tech but potentially
effective steps such as forwarding notices to customers who have been
identified as infringers, or using increasingly sophisticated bandwidth
management tools as and when they come online, the obligation to deploy
such measures must be explicit.⁶

Voluntary industry efforts are already underway on this score, and NBC
has presented absolutely no evidence that government regulatory mandates
are necessary or will prove effective. For example, according to Bob
Wright, Vice Chairman of General Electric and former head of NBC
Universal, six of the eight largest ISPs in the United States plan
voluntarily to adopt a "notification" system to respond to concerns like
those raised by NBC.⁷
Rather than rushing to impose regulatory obligations on ISPs at this
early stage, it makes more sense to monitor the outcomes of these
voluntary efforts.

We principally object to the supposed "bandwidth management tools" that
NBC thinks will help curb widespread copyright infringement. We believe
that such tools are ineffective at best, harmful at worst, and always
undesirable as a matter of public policy.

I. NBC'S CALL TO REQUIRE THAT ISPs FILTER THE INTERNET OF COPYRIGHT
INFRINGEMENT SHOULD BE REJECTED

NBC vaguely speaks of "increasingly sophisticated bandwidth management
tools"⁸ when it means
network filters. Network filters are tools network operators use
in attempts to prevent their networks from being used to transmit certain
kinds of content. Unlike previous attempts to control content by
requiring that consumer devices respect digital watermarks,⁹ network filters may not require that
consumer hardware be redesigned by federal regulatory mandate. However,
the effect that network filters have on the uses to which consumer
devices may be put is perhaps even more severe.

There are two primary kinds of Internet filtration technology: Content
inspection and traffic analysis. Content inspection technologies look at
the packets of data that are being transferred in order to determine
whether those data are infringing. If the data are infringing, the
technology blocks the transfer.¹⁰ Traffic analysis technology does not look at the data,
but at the kind and nature of the data traffic. By analyzing the data
traffic, the technology attempts to determine what application is sending
the data. If the application appears to be one that the network operator
has decided to block, the technology blocks the transfer.

Network filtration technologies, however they work, are both over- and
underinclusive. They are overinclusive in that they block transfers of
legitimate content, whether through simply shutting down certain kinds of
applications, by preventing the lawful use of copyrighted material, or
through other false positives.¹¹ They are underinclusive in that they fail to stop the
traffic in infringing material. In fact, any
foreseeable filtration technology would suffer these defects.
Mandating the use of an overinclusive technology would have an
unconstitutional chilling effect on free speech. Mandating the use of an
underinclusive technology would be a costly distraction and, like
previous attempts to mandate copyright protection technologies, beyond
the FCC's authority.

A. Blocking Applications from the Internet Would Chill Free Speech and
Stifle Innovation

A careful reading of NBC's filing suggests that it would like traffic
analysis systems to block access to technologies that can be used for
copyright infringement -- for instance, it claims that consumers are not
entitled to use "applications that allow" infringement.¹² Statements made elsewhere by NBC
also indicate that they support traffic analysis technology. NBC General
Counsel Rick Cotton has said that

AT&T deserves praise for stepping up to the challenge of developing
technology that protects copyrighted content and doesn't intrude in any
way on the privacy of its customers.¹³

As an initial matter, it is not at all clear that traffic analysis
technology will adequately protect privacy.¹⁴ To the extent it does, however, it does so by
simply blocking all content transmitted in certain ways,
regardless of whether it is infringing.

1. Network Filters Would Stifle Innovation

As discussed above, the most troubling aspect of traffic analysis
technologies is touted as a strength:¹⁵ that they block applications, and not content. By
design, these technologies¹⁶ block methods by which computers communicate on the
Internet. They block all traffic transmitted in certain ways --
authorized and unauthorized copyrighted content, public domain works,
fair uses and infringing material. One Canadian ISP, Rogers Internet,
reportedly blocks or degrades all encrypted traffic, making it
difficult for some University of Ottawa students to even use their
email.¹⁷ Technologies
that are similar to those being targeted may find themselves blocked.
Creators who rely on peer-to-peer technology to legally distribute
content could find it more difficult to reach their audience. In
attempting to satisfy the needs of one industry, traffic analysis
technologies drastically reduce the usefulness of the Internet, replacing
its open nature with a system in which new kinds of applications must
ensure they do not run afoul of the machine-enforced "rules." This kind
of network filtration is dangerously overinclusive.

When the motion picture industry attempted to have VCRs declared
illegal,¹⁸ it was
targeting a single, particular technology that it viewed as a threat. A
traffic analysis scheme goes even further: it would impose a system
whereby whole categories of technology would be presumptively banned.
Banning Internet applications and protocols sets a dangerous precedent,
and could lead to network operators blocking other kinds of protocols.
Nearly any Internet protocol can be used to illegally transfer
copyrighted materials -- instant messaging, the web, email, and many
other protocols are capable of being used for this purpose.¹⁹

Applications such as Joost and Miro (formerly Democracy Player) use
peer-to-peer technology to distribute video content legally.
Government-imposed blocks on peer-to-peer technologies could restrict
these legal platforms' ability to exist, and limit the means by which
creators can find an audience. Developers often distribute their software
with BitTorrent as a bandwidth-saving measure.²⁰ Some musicians have also used the
technology.²¹ Other
technologies, such as Internet telephony application Skype, also rely on
peer-to-peer connections -- indeed, the Internet itself largely operates
on a peer-to-peer basis. Attempts to fix the problem of copyright
infringement by changing the very nature of the Internet are certain to
have serious and damaging unintended consequences.

In addition to limiting current applications, NBC's desire to protect its
revenue by limiting copyright infringement could also have the effect of
preventing new channels of content distribution -- the next YouTube or
Miro -- from coming into being. The current generation of media companies
should not be able to prevent the next generation from coming into being
under the guise of preventing copyright infringement. An open Internet
ensures that developers and entrepreneurs invest time and money into
developing innovative new applications. An open and neutral Internet, not
one hobbled to serve the needs of a minority, will best allow consumers
to enjoy the benefits of "innovation without permission."²²

2. It is Unconstitutional to Contravene Fair Use

NBC discusses "legal" and "illegal" uses of video content, without
recognizing that the principle of fair use makes distinguishing between
these complex. It calls for the use of "readily available means to
prevent the use of ... broadband capacity to transfer pirated
content,"²³ but no
method that fails to take into account the principle of fair use can be
squared with our copyright traditions or constitutional values.

A copyright holder does not have complete control over the copyrighted
work.²⁴ It is the
limitations on copyright that keep it from conflicting with the First
Amendment. Fair use and other doctrines are principles that allow for
free expression. As the Supreme Court has explained,

Copyright ... does not impermissibly restrict free speech, for it grants
the author an exclusive right only to the specific form of expression
... and it allows for "fair use" even of the expression
itself.²⁵

A fair use of copyrighted work is therefore protected free speech.
Network filters not only threaten such uses as comment, criticism, and
parody. Other kinds of lawful uses, such as the creation and transfer of
backup copies, time- and space-shifting, and "me to me" transfers (where
a computer user transfers legally-purchased content from one device to
another over the Internet) may be impossible to distinguish from
infringing transfers, and blocked by a network filter. NBC seems to
suggest that network filtration would be a straightforward matter, but
the nuances of copyright law make distinguishing lawful from infringing
uses of content a matter that cannot be relegated to an automated
"bandwidth management tool."

No law should "allow any copyright owner, through a combination of
contractual terms and technological measures, to repeal the fair use
doctrine."²⁶ Because an
"unauthorized" use is not necessarily an illegal one, no technology or
method²⁷ should give
the desires of a copyright holder priority over the First Amendment.

B. Network Filters Cannot Be Effective

In addition to being overinclusive, network filters are underinclusive in
that determined copyright infringers and new technologies will always
find a way around them.²⁸

Content inspection technologies can only operate when data packets are
not encrypted.²⁹ Most
peer-to-peer technologies today do not encrypt their data, but many do
and all can. Any content inspection technology (such as Audible Magic)
will be at best temporarily effective, inconveniencing users and
developers of peer-to-peer technology until they migrate to an encrypted
system. It is worth bearing in mind that the same technologies that
peer-to-peer systems use to encrypt their traffic are the very same
technologies used to secure billions of dollars of online transactions
annually, and by the world's military forces and diplomatic services to
secure their communications. Encryption technologies are effective and
useful not only to governments and banks, but to companies that wish to
maintain confidential communications, to individuals who encrypt the
contents of their laptop computers' hard drives to maintain privacy in
the event of theft or loss, and to anyone interested in authenticating
the authorship of electronic materials through the use of digital
"signatures." In short, claims by vendors to have technologies that make
encryption useless should be looked at with the highest degree of
skepticism -- were such a technology to actually be invented, it would be
of more interest to the banking industry and the National Security Agency
than to the content industry.³⁰

Traffic analysis technologies which seek to prevent certain kinds of
applications from using the network can also be defeated, by using
"masking" strategies. As with content inspection technology, it makes no
sense to mandate the use of ineffective technology. Simplistic attempts
to block Internet traffic by filtering packets by "port number" are
easily defeated.³¹
There are also more sophisticated means, such as "deep packet
inspection," which attempt to look at the quantity and nature of a given
user's traffic in an attempt to determine whether that user is
transferring large files or using certain applications. Even assuming
that the technology could distinguish typical peer-to-peer file transfers
(of both infringing and noninfringing material) from legitimate web and
email downloads, Internet applications can be designed to shape their
traffic in ways that make them appear to be what they are
not.³² For instance, an
application like WASTE is already capable of maintaining a steady data
connection between two peers, whether or not any data is actually being
transferred.³³ An
eavesdropper is therefore unable to determine whether, at any given time,
a file transfer is even taking place. Similar strategies that mask and
shape data traffic between computers can make any attempt to block
traffic based on kind of application futile or overinclusive to the point
of disabling the Internet.³⁴

The only way to block more infringing content is to widen the net such
that more noninfringing content is also inadvertently blocked. As
infringing traffic moves into new and harder-to-detect networks,
filtration technologies will continue to block legitimate and
noninfringing traffic. Should ISPs attempt to widen the net to account
for new types of infringing traffic, they will generate even more false
positives and block even more noninfringing content. Network filters are
therefore a losing game for ISPs, content providers, and innocent,
noninfringing users. Putting these ineffective non-solutions into place
would be a waste of government and private resources and would not stop
widespread infringement or ensure that content creators are paid for
their work.

C. NBC's Argument Depends on Factual and Policy Mischaracterizations

NBC uses mischaracterizations to make its case for government mandated
network filters. The oddest of its claims attempts to frame copyright
infringement as implicating the economy at large. It claims that

[I]n the absence of movie piracy, video retailers would sell and rent
more titles. Movie theaters would sell more tickets and popcorn. Corn
growers would earn greater profits and buy more farm
equipment.³⁵

This kind of reasoning has no merit. NBC's specious attempt to follow the
chain of cause and effect to its absurd limits³⁶ is driven by the fact it is a minority
copyright holder engaged in special pleading for government favors. The
collective intellectual property holdings of members of such
organizations as the MPAA and the RIAA are vastly outnumbered by the
copyrighted works created by ordinary citizens. Blog posts, emails, and
home movies are all copyrighted -- as well as most elements of the
emerging free culture, including Wikipedia, Linux, Firefox, and other
free software. When an organization like NBC speaks, it speaks for
itself, and not for content creators generally. Its attempt to restrict
the Internet's uses through obtrusive filtering technology would harm,
not help, the majority of copyright holders.

NBC's statement that "[a]s much as 60-70% of traffic on the Internet
consists of P2P file transfers by a very small minority -- fewer than 5%
-- of users"³⁷ suggests
that their proposed solutions only target a small number of individuals.
But NBC's proposal would not just affect heavy copyright infringers; it
would impose restrictions and monitoring on all Internet users.

Likewise, NBC's focus on a particular type of application is misguided.
Internet usage patterns can change in what is, in the policy context, the
blink of an eye. For instance, some evidence suggests that streaming
video services have become the dominant form of Internet
traffic.³⁸ Technologies
that are lambasted by the content industry may be adopted as tomorrow's
favored content distribution mechanism. YouTube has been sued for
copyright infringement as well as embraced as a novel form of
distribution and promotion.³⁹ Technologies that are embraced today may be left
behind tomorrow -- already, we see EMI moving away from DRM-protected
music downloads.⁴⁰ The
content industry's crusade against particular kinds of technologies might
seem as quaint in a few years' time as the recording industry's erstwhile
"Home Taping is Killing Music" campaign or the motion picture industry's
own attempt to ban VCRs.⁴¹

The FCC should not be swayed by NBC's rhetorical feints and willful
misunderstandings. The problem of widespread copyright infringement can
be mitigated without the drastic measures it proposes.

D. Net Neutrality Does Not Interfere With "Network Management"

NBC would redefine Net Neutrality to allow the kinds of discrimination it
favors.⁴² This is
because it claims that Net Neutrality⁴³ could interfere with "network management." It claims
that "bandwidth hogs threaten the quality of Internet service enjoyed by
mainstream broadband subscribers who rely on the Internet principally for
e-mail and web browsing,"⁴⁴ and that therefore network filtration should be
allowed (in fact, required) even in a Net Neutrality regime.

But Net Neutrality does not preclude non-discriminatory traffic shaping
-- latency-sensitive protocols, such as VOIP, may be prioritized without
violating principles of Net Neutrality. These principles only prevent a
network operator from prioritizing one carrier's voice traffic, and not
another's; and they would prevent a network operator from degrading or
blocking certain kinds of applications, like video streaming or
peer-to-peer. NBC recognizes that network operators are already
taking measures of this kind, including

(1) protocols that slow P2P traffic and allow other types of traffic
(such as e-mail and web browsing) to receive the level of service to
which they are entitled; (2) terms of service that charge a premium for
higher downstream and upstream speeds and higher monthly consumption
caps; and (3) termination of subscribers who "typically and repeatedly
consume exponentially more bandwidth than an average residential
user.⁴⁵

Non-discriminatory traffic shaping is probably sufficient to solve most
network management problems.⁴⁶ However, Net Neutrality also does not prevent ISPs
from charging users for the bandwidth they use, or from imposing
bandwidth caps. Net Neutrality is concerned with preventing network
operators from controlling how their users use the network, not
how much use they make of it.

Because Net Neutrality does not prevent a network operator from managing
its network and scarce bandwidth, and because filtration technologies are
not required for network operators to manage their networks, it makes no
sense to require that network operators monitor their networks for
copyright infringement as a network management measure and to protect
against "bandwidth hogs."

II. THE FCC SHOULD IGNORE NBC'S ATTEMPT TO INDUCE IT TO EXCEED ITS
JURISDICTION

NBC has chosen an inappropriate forum in which to air its grievances.
When the Commission asked in the Notice of Inquiry "whether any
regulatory intervention is necessary,"⁴⁷ it was not inviting calls for it to exceed its
jurisdiction.

A. The FCC May Not Set Copyright Policy

The FCC has tried to step into the business of copyright regulation
before. In its Broadcast Flag ruling,⁴⁸ the Commission required that hardware that connects to
public networks contain technology designed to prevent some kinds of
copying. The FCC was reversed by the D.C. Circuit, which held that the
agency exceeded its authority when it adopted rules requiring digital
media devices to prevent some unauthorized (but not necessarily illegal)
copying.⁴⁹ Before that,
the Commission was reversed when it tried to mandate that all
broadcasters add video description information to their
programming.⁵⁰ In both
cases, the D.C. Circuit held that the FCC overstepped the authority given
to it by Congress.⁵¹
Mandating that network operators use "means to prevent the use of their
broadband networks to transfer pirated content"⁵² does not constitute the regulation of
"communication by wire or radio;"⁵³ instead, it transforms the FCC into a copyright agency
and would in practice limit rights of fair use. The FCC's authority to
regulate "communication" does not give it the general authority, absent
an express delegation of power from Congress, to regulate
content.⁵⁴
Additionally, under any mandated scheme of network filtration, disputes
would undoubtedly arise hinging on whether a particular
unauthorized use is in fact an illegal one. The FCC has
no authority to hear or decide this kind of dispute, and cannot require
that network operators become "copyright cops."⁵⁵ It has no power at all to regulate
copyright absent an express delegation of power. As Sen. Patrick J.
Leahy, Chairman of the Senate Judiciary Committee has written, Title 47
"grants ... the FCC ... no express authority ... to address the complex
issues of intellectual property matters[.]"⁵⁶ The Commission should not heed calls for it to
again exceed its authority by instituting policies which would, in
practice, constitute copyright law.

B. The FCC May Not Declare That Internet Applications Are Illegal

The FCC does not have the authority to declare that Internet
applications, such as peer-to-peer technologies, are illegal and should
be blocked from the Internet.⁵⁷ The Supreme Court has been clear that while
individuals and organizations may break the law, technologies which have
substantial non-infringing uses are legal.⁵⁸ Furthermore, the FCC's Broadband Policy
Statement is designed to prevent network operators from blocking
consumers from using the applications of their choice.⁵⁹ Congress refused to mandate in the DMCA
that devices respond to specific technological protection
measures⁶⁰ because of
the belief that "[t]echnology and engineers -- not lawyers -- should
dictate product design."⁶¹ Neither should lawyers dictate what Internet products
consumers may and may not use. Any such attempt to block certain kinds of
applications from networks would run afoul of the law and sensible
policy. Imposing intrusive filters on the Internet will not bring us any
closer to a solution that ensures that artists and rights-holders are
paid, and will simply drive illegal traffic to use more secretive
methods.

III. MARKETPLACE INITIATIVES AND ENFORCEMENT OF CURRENT COPYRIGHT LAW,
NOT GOVERNMENT MANDATES, ARE THE BEST METHODS FOR COMBATTING WIDESPREAD
INFRINGEMENT

The infringement that has attended the digital revolution is a symptom of
rapid change and unmet demand. Recognizing this, the motion picture
industry has already taken the first step towards curbing infringement by
bringing its offerings more into line with customer demand. Services like
Amazon Unbox, Netflix Watch Now, CinemaNow, and Vongo offer online
streaming of movies. Apple's iTunes store offers an easy-to-use
downloading service for movies and television episodes. In other markets,
the cable industry continues to improve its Video-On-Demand offerings,
and Netflix, Greencine, and Blockbuster Online have revolutionized
traditional movie rentals. NBC Television has offered its programs for
free streaming on its website, and ABC and other networks have likewise
embraced the Internet and new technologies for both promotion and content
distribution. Allowing the market to choose among different distribution
methods ensures that a variety of approaches can be explored and employed
simultaneously, instead of gambling on a government-mandated,
one-size-fits-all scheme.⁶²

The lack of readily available legal content, not any particular
technology, provides the demand for infringement. Much illegal
downloading is still driven by the fact that some movies are available
illegally online before they are legally available by any means -- for
instance, most of the movies nominated for the 2007 Oscars were available
online at a time when few were available to be seen either in theaters or
through rental.⁶³ A
spokesman for Netflix, which offers an online movie streaming service,
has noted that "[w]hether it's Netflix or Apple or Amazon or
Wal-Mart.com, we're all facing the same constraint: title
availability."⁶⁴ We are
confident, however, that the market will develop solutions that provide
customers what they want, when they want it, at a fair
price.⁶⁵ It is too
early for the government to intervene and attempt to "solve" a problem
that may be in the process of solving itself.

There are currently-existing legal tools which content providers can and
do use to enforce their rights. The Supreme Court in Grokster
gave content owners a way to take action against companies profiting from
and encouraging infringement.⁶⁶ Congress has been responsive to some specialized needs
of the motion picture industry, as when in the 2005 Family Entertainment
and Copyright Act it created a special cause of action against "leaks of
pre-release works and made explicit the illegality of bringing a
camcorder into a movie theatre."⁶⁷ Because of these and other tools that the content
industry has used to combat infringement, the RIAA has described the
problem of file-sharing as "contained."⁶⁸ As discussed above, Bob Wright, Vice Chairman of
General Electric and former head of NBC Universal, reports that six of
the eight largest ISPs are voluntarily cooperating with the content
industry on ways to limit copyright infringement.⁶⁹ Policymakers should be chary of giving the
content industry more and more means to effectuate the same end,
particularly when some of the proposed new means would have the effect of
limiting competition and limiting alternative legal means of content
distribution.

Alternatives exist to network filters that do not suffer those
technologies' fatal defects. Most of them require no government
involvement or oversight. The Commission should ignore NBC's call for it
to mandate flawed technologies and troublesome policies.

CONCLUSION

For the foregoing reasons, the Commission should reject NBC's invitation
to require that broadband providers institute network filters.

Respectfully Submitted,

Public Knowledge
Consumer Federation of America
EDUCAUSE
Electronic Frontier Foundation
Electronic Privacy Information Center
FreeCulture.org
Free Press
Knowledge Ecology International
Media Access Project
New America Foundation
U.S. Public Interest Research Group

BY: /s/

Sherwin Siy, Staff Attorney
Gigi Sohn, President
Alexander Curtis, Policy Director
John Bergmayer, Law Clerk
Public Knowledge
1875 Connecticut Ave. NW
Suite 650
Washington, D.C. 20009
(202) 518-0020

July 16, 2007

¹ Comments of NBC
Universal, Inc., WC Docket No. 07-52, at 8 (June 15, 2007), available
at
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519528962.

² Comments of NBC
Universal, Inc., WC Docket No. 07-52, at 8 (Jun. 15, 2007).

³ Id.

⁴ Steve Hamm, Sony
BMG's Costly Silence, Business Week, Nov. 29, 2005,
http://www.businessweek.com/technology/content/nov2005/tc20051129_938966.htm.

⁵ Comments of NBC
Universal at 8.

⁶ Id.

⁷ Nate Anderson, GE
exec: Piracy puts America's "overall economic health at risk," Ars
Technica, Jun. 20, 2007,
http://arstechnica.com/news.ars/post/20070620-former-nbc-head-we-need-better-filtering-tools-to-fight-piracy.html.

⁸ Comments of NBC
Universal at 8.

⁹ Digital Broadcast
Content Protection, Report & Order & Further Notice of
Proposed Rulemaking, 18 FCC Rcd. 23,550 (2003).

¹⁰ Generally speaking,
because copyright is not a physical property, content inspection
technologies must operate by comparing an examined work against a
database of works -- it is not enough to merely determine that a
particular data packet contains, e.g., video. It would also be necessary
to have some means to determine which uses are legal and which not. The
maintenance of such a database is potentially costly and error-prone.

¹¹ Allot Communications
explains,

False positives is the basic terminology referring to misclassification
-- or in simple terms -- the likelihood that an application will be
identified as something it is not. If [deep packet inspection] is being
used for guiding a subscriber management tool, this may lead to wrongful
actions.

Allot Communications, Digging Deeper Into Deep Packet Inspection (DPI),
at 4 (Apr. 2007),
http://www.getadvanced.net/learning/whitepapers/networkmanagement/Deep%20Packet%20Inspection_White_Paper.pdf.%06.

¹² Comments of NBC
Universal at 7.

¹³ Sanford Nowlin,
AT&T Slammed Over Piracy Plan, San Antonio Express-News,
Jun. 15, 2007, available at http://contentagenda.com/articleXml/LN627585829.html?industryid=45174.

¹⁴ Content inspection
technologies unarguably raise serious privacy concerns. They examine data
packets in order to determine whether content is infringing. This is akin
to requiring FedEx to inspect each of the packages it carries for bootleg
tapes, or that an ISP read each of the emails it transmits to determine
whether any contain libelous material. It is not possible to limit
inspection only to packets likely to be infringing, or to limit an
inspection to only some part of the packet, such as its header
information. To evade detection, bad actors can already make their
packets indistinguishable from packets used for activities like web
browsing and email, and, if they feel the need to do so, will. Therefore,
any content analysis technology, to remain effective, must eventually
increase its scope of monitoring until all Internet traffic is
monitored. Some traffic analysis technologies also involve the inspection
of the content of data packets. The fact that some traffic analysis
technologies evade these concerns only to replace them with a new set of
problems is no argument in their favor.

¹⁵ "cGRID::Integrity
respects privacy and focuses on the way the files are sent, not the
particular movie or song being shared." Red Lambda, cGRID::Integrity
Overview, http://www.redlambda.com/products.php
(last visited Jul. 10, 2007). See also statement of Rick Cotton,
supra.

¹⁶ Such as SafeMedia's
Clouseau, or the offerings of Red Lambda. See Red Lambda,
http://www.redlambda.com/ (last
visited Jul. 10, 2007); see also SafeMedia, http://www.safemediacorp.com/ (last
visited Jul. 10, 2007).

¹⁷ The Unintended
Consequences of Rogers' Packet Shaping, Michael Geist's Blog,
http://www.michaelgeist.ca/content/view/1859/?a=1
(Apr. 5, 2007).

¹⁸ Sony Corp. of
America v. Universal City Studios, 464 U.S. 417, 489 (1984) (Sale of
copying equipment is not contributory infringement if the product is
capable of substantial noninfringing uses).

¹⁹ Usenet and IRC are
examples of long-standing Internet applications widely used both for
legitimate purposes (discussions and chat, respectively) as well as for
unauthorized file-sharing.

²⁰ See, e.g.,
Ubuntu BitTorrent Tracker, http://torrent.ubuntu.com:6969/
(last visited Jul. 10, 2007); Downloading Debian CD images with
BitTorrent, http://www.debian.org/CD/torrent-cd/
(last visited Jul. 10, 2007).

²¹ The rock band Ween,
for instance, maintains a BitTorrent tracker to distribute their music.
Brown Tracker, http://www.browntracker.net/ (last
visited Jul. 10, 2007).

²² See Letter
from Wireless Founders Coalition to Chairman Kevin Martin, WT Docket Nos.
06-150, 96-86, PS Docket No. 06-229, at 3 (June 7, 2007) ("What makes the
Internet so friendly from an entrepreneur's perspective is its Openness.
One does not have to ask ... permission to launch a new product, service,
or device. To borrow the Nike slogan, you can 'just do it.'"),
available at
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519535073.

²³ Comments of NBC
Universal at 8.

²⁴ Exclusive rights
"do[] not give a copyright holder control over all uses." Fortnightly
Corp. v. United Artists, 392 U.S. 390, 393 (1963).

²⁵ Eldred v.
Ashcroft, 537 U.S. 186, 197 (2003).

²⁶ Chamberlain
Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1202 (Fed.
Cir. 2004).

²⁷ Including FCC
regulations, onerous licensing and adhesion contracts, and "back-door"
means like anti-circumvention laws or mandated network filters.

²⁸ In addition to the
technological measures that may be employed to bypass network filters,
much trading of copyrighted material takes place via the "sneakernet,"
which consists of burnt media, flash drives, and portable hard drives
being used to exchange data more efficiently than can be done even over
broadband. No network filtration technology can affect this form of
file-sharing. According to the NPD group, the "'social' ripping and
burning of CDs among friends -- which takes place offline and almost
entirely out of reach of industry policing efforts -- accounted for 37
percent of all music consumption, more than file-sharing[.]" Jeff Leeds,
Plunge In CD Sales Shakes Up Big Labels, New York Times, May 28,
2007, at E1, available at http://www.nytimes.com/2007/05/28/arts/music/28musi.html
(subscription required). See generally Paul Boutin,
Sneakernet Redux: Walk Your Data, Wired, Aug. 8, 2002, http://www.wired.com/culture/lifestyle/news/2002/08/54739.

²⁹ "The use of
encryption for obfuscation purposes typically prevents the use of
content-based inspection as it is, by definition, scrambled." Allot
Communications, Digging Deeper Into Deep Packet Inspection (DPI)
8 (April 2007),
http://www.getadvanced.net/learning/whitepapers/networkmanagement/Deep%20Packet%20Inspection_White_Paper.pdf.

³⁰ Furthermore,
attempts to block traffic simply because it is encrypted would also block
these myriad, vital uses of encrypted content.

³¹ Different Internet
protocols mark their data packets with different "port" numbers. For
instance, most web traffic is carried on port 80, which means that data
packets intended for display in a web browser are "labeled" with the
number 80. A computer's software knows, based on this label, to pass
along data that was labeled "80" to the web browser. These port numbers
are arbitrary and changeable. A given Internet application could arrange
to use any port number. A peer-to-peer application could be designed to
use, e.g., port 80. Any attempt to block the application by means of
filtering out all data packets belonging to port 80 would also have the
effect of blocking normal web traffic.

³² Any kind of analysis
(string match, numerical properties, or behavior and heuristics) can be
defeated through combinations of masking, obfuscation and encryption.

³³ WASTE can mask its
protocol, making it difficult to detect that it is being used. It also
has a "saturate" capability which adds random traffic to connections.
WASTE, http://waste.sourceforge.net/index.php
(last visited Jul. 10. 2007).

³⁴ The Unintended
Consequences of Rogers' Packet Shaping, supra note 18 at 5
fn. 12.

³⁵ Comments of NBC
Universal at 3.

³⁶ One could as easily
argue that the money consumers save by not buying movie tickets they
instead use to eat out in restaurants, thus helping farmers, restaurant
owners, the automobile industry, and parking valets.

³⁷ Comments of NBC
Universal at 1.

³⁸ "Presently, as a
result of streaming audio and video in Web downloads, HTTP is
approximately 46% of all traffic on the network. P2P continues as a
strong second place at 37% of total traffic." Ellacoya Networks,
Ellacoya Data Shows Web Traffic Overtakes Peer-to-Peer (P2P) as
Largest Percentage of Bandwidth on the Network (June 18, 2007),
http://www.ellacoya.com/news/pdf/2007/NXTcommEllacoyaMediaAlert.pdf.

³⁹ See Don
Jeffrey Bloomberg, Warner Music, YouTube cut music-video deal,
USA Today, Sep. 19, 2006, http://www.usatoday.com/money/media/2006-09-19-youtube-bloomberg_x.htm;
Miguel Helft and Geraldine Fabrikant, WhoseTube? Viacom Sues Google
Over Video Clips, New York Times, Mar. 14, 2007, http://www.nytimes.com/2007/03/14/technology/14viacom.html.

⁴⁰ EMI Music, EMI
Music launches DRM-free superior sound quality downloads across its
entire digital repertoire, Apr. 2, 2007, http://www.emigroup.com/Press/2007/press18.htm.

⁴¹ Sony, 464
U.S. at 489.

⁴² Comments of NBC
Universal at 8, n.24.

⁴³ As used here, Net
Neutrality consists of a combination of the four principles outlined in
the FCC's Broadband Policy Statement, including the right of consumers
"to run applications and use services of their choice, subject to the
needs of law enforcement[,]" Appropriate Framework for Broadband Access
to the Internet over Wireline Facilities, Policy Statement, 20
FCC Rcd. 14,986, 14,988 (2005), along with the preclusion of service
providers from "privileg[ing], degrad[ing], or prioritiz[ing] any packet
... based on its source, ownership, or destination." Letter from Robert
W. Quinn, Jr., Senior Vice President, Federal Regulatory, AT&T, to
Marlene H. Dortch, Secretary, Federal Communications Commission, WC
Docket No. 06-74, at 8 (Dec. 28, 2006) (outlining AT&T's merger
commitments) available at
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518716381;
see also Broadband Industry Practices, Notice of
Inquiry, 22 FCC Rcd. 7894, 7902 (2007) (Separate Statement of Comm.
Michael J. Copps) (explaining a neutrality principle that "allows for
reasonable network management").

⁴⁴ Comments of NBC
Universal at 2.

⁴⁵ Comments of NBC
Universal at 6.

⁴⁶ Of course, ISPs must
follow applicable laws in implementing these measures, including
adequately disclosing these limitations to subscribers. See Tim
Wu, Wireless Net Neutrality: Cellular Carterfone on Mobile
Networks (New America Foundation Wireless Future Program, Working
Paper No. 17, Feb. 2007), (criticizing Verizon for touting "unlimited
data access" while imposing a variety of undisclosed bandwidth
restrictions on subscribers), available at http://ssrn.com/abstract=962027.

⁴⁷ NOI,
supra note 43.

⁴⁸ Digital Broadcast
Content Protection, Report & Order & Further Notice of
Proposed Rulemaking, 18 FCC Rcd. 23,550 (2003).

⁴⁹ American Library
Ass'n. v. F.C.C., 406 F.3d 689 (D.C. Cir. 2005) (Commission exceeded
its authority by requiring that devices respect the "broadcast flag").

⁵⁰ Motion Picture
Ass'n of Am. v. F.C.C., 309 F.3d 796 (D.C. Cir. 2002) (Commission
exceeded its authority by implementing video description rules).

⁵¹ Motion Picture
Ass'n., 309 F.3d at 801 ("An agency may not promulgate even
reasonable regulations that claim a force of law without delegated
authority from Congress."). Also, in American Library Ass'n.,
406 F.3d at 698, the court explains,

The FCC, like other federal agencies, 'literally has no power to act ...
unless and until Congress confers power upon it.' La. Pub. Serv.
Comm'n v. FCC, 476 U.S. 355, 374 ... (1986). The Commission 'has no
constitutional or common law existence or authority, but only those
authorities conferred upon it by Congress.' Michigan v. EPA,
268 F.3d 1075, 1081 (D.C. Cir. 2001). Hence, the FCC's power to
promulgate legislative regulations is limited to the scope of the
authority Congress has delegated to it. Id. (citing Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 208 ... (1988)).

⁵² Comments of NBC
Universal at 8.

⁵³ American Library
Ass'n., 406 F.3d at 703 ("The Federal Communications Commission may
not lawfully exercise jurisdiction over activities that do not constitute
communication by wire or radio.").

⁵⁴ Motion Picture
Ass'n., 309 F.3d at 801.

⁵⁵ Am. Library
Ass'n, 406 F.3d at 702 ("[T]he Commission may not invoke its
ancillary jurisdiction under Title I to regulate matters outside of the
compass of communication by wire or radio.").

⁵⁶ Letter from Sen.
Patrick J. Leahy, Chairman, Senate Judiciary Committee and Rep. F. James
Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, et
al. to Michael K. Powell, Chairman, FCC (Sept. 9, 2002).

⁵⁷ Motion Picture
Ass'n., 309 F.3d at 801; American Library Ass'n., 406 F.3d
at 698.

⁵⁸ See
Sony, 464 US at 789; Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 915 (statements or actions directed to
promoting infringement required for seller liability).

⁵⁹ Appropriate
Framework for Broadband Access to the Internet over Wireline Facilities,
Policy Statement, 20 FCC Rcd. 14986 (2005).

⁶⁰ "Nothing in this
section shall require that the design of, or design and selection of
parts and components for, a consumer electronics, telecommunications, or
computing product provide for a response to any particular technological
measure[.]" 17 U.S.C. § 1201(c)(3).

⁶¹ 144 Cong. Rec. S9936
(daily ed. Sept. 3, 1998) (remarks of Sen. Ashcroft); accord 144
Cong. Rec. H7100 (daily ed. Aug. 4, 1998) (remarks of Rep. Klug).

⁶²One active field of
experimentation is discovering whether removing digital rights management
from content may increase sales. Sales of legal, DRM-free music from the
EMI catalog have been surprisingly brisk. Jacqui Cheng, EMI says
DRM-free music is selling well, Ars Technica, Jun. 20, 2007,

http://arstechnica.com/news.ars/post/20070620-emi-says-drm-free-music-is-selling-well.html.

⁶³ Pirating the
2007 Oscars, Waxy.org, http://www.waxy.org/archive/2007/01/23/pirating.shtml
(Jan. 23, 2007).

⁶⁴ Joe Hutsko, All
the Films You Want to See, but When?, NY Times, Jun. 21, 2007,
available at
http://www.nytimes.com/2007/06/21/technology/21basics.html?ex=1183089600&en=0530fcff86915bd4&ei=5070&emc=eta1.

⁶⁵ File-sharing does
not provide anyone with "free" content -- time and inconvenience, as well
technical and legal risk are costs of these services. Significant
technical knowhow is required to even use many of them.

⁶⁶ The Grokster
decision has proven useful for content owners. As Gigi Sohn has written,

The Supreme Court's decision in MGM v. Grokster [545 U.S. 913]
gave content owners a powerful tool against infringement by holding that
manufacturers and distributors of technologies that are used to infringe
could be found liable for infringement if they actively encourage
illegal activity. As a result, a number of commercial peer-to-peer (P2P)
distributors have gone out of business, moved out of the U.S., or sold
their assets to copyright holders.

Gigi B. Sohn, Don't Mess With Success: Government Mandates and the
Marketplace for Online Content, 5 J. On Telecomm. & High Tech.
L. 73, 84 (2006).

⁶⁷ Id. at 85.

⁶⁸ Jefferson Graham,
RIAA Chief Says Illegal Song-Sharing "Contained", USA Today,
Jun. 12, 2006, available at http://www.usatoday.com/tech/products/services/2006-06-12-riaa_x.htm.

⁶⁹ Anderson,
supra note 6.